Major Help needed with Cabot and CCJ**WON** Case dismissed

[gazhodge1981]

Thanks Spam, It's an interesting thread with some really good pointer. It does seem that Cabot dont like paperwork to much

The Defence that is on there is interesting as well and looks like I could use a fair bit of it as Cabot don't seem to be able to produce documents on a CPR request.

As for putting claims together and reading that thread I don't see why they have put them together if I have read it right.

[gazhodge1981]

is it worth putting in a skeleton Defence once it is done??? Just read on some of the threads thats all that some have done it.

[Spamalot]

is it worth putting in a skeleton Defence once it is done??? Just read on some of the threads thats all that some have done it.

 

When you are going for a set aside you don't have to put in a fully particularised defence, you just have to have enough to show that you could win the case at trial. Once the set aside has been granted that is when you need to go into it in more detail with case law etc.

 

At this stage, Cabot have to be put to strict proof that they have the documents needed to take the matter to trial as they have not supplied anything much that you can confirm or deny.

 

We will help you get the Set aside defence ready for the day.. and assuming all goes well that defence can be fully particularised afterwards with a countercalim added.

 

Spam.

[gazhodge1981]

Thanks Spam.

I am just thinking of making it easy for him as he can forget things

Am I able to go with him and help him at all???

[Spamalot]

Hi Gaz,

 

I believe you can go in as a 'McKenzie friend'

 

There's a lot of info on this thread which may help..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195563-litigants-person-interesting-reading.html

 

What we can do is prepare his defence and reason for set aside in avery simple format so it can basically be read off the page.

 

These hearings are more like 'informal gatherings' where you sit around the table with the DJ at the head directing it all.

 

Just make sure he is well prepared and well briefed and I'm sure he'll be ok..

 

Spam.

[gazhodge1981]

It does seem so Spam,

I think getting a defence prepared, giving him a few days to read it will put his mind at easy as he is looking worried

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt-16.html - I Think the Defence on here with a few changes reads well to me but as it is an informal gathering it might be a but much

[Spamalot]

It depends on which defence you are looking at... The most recent one is ready for my hearing.. a few pages earlier is the set aside one.. It's similar but nowhere near as involved..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt-15.html#post2381656

 

Should be on the above post if I've linked it correctly... a copy would be given to the judge and the other side so as long as your Dad is familiar with whats in it, he should be OK.

 

Spam.

[gazhodge1981]

I was looking at the second one for your hearing hehe, I can see it has alot more case law in it and was wondering if that would be a good thing to do

I think I just want to make sure

[Spamalot]

I understand your Dads hearing is on 16th of this month so thats middle of next week.... I'll have a proper look at your thread a bit later and see if I can edit my old defence to suit...unless you are happy doing it yourself..:-|

 

There are a lot of similarities in the cases but as there's two alleged agreements, it'll be slightly more involved.

 

Spam.

[gazhodge1981]

Your help so far Spam has been amazing and any help would be much appreciated as I have not done a defence before. :o

the mail points I can see are:-

1. no court paperwork so unable to file a defence.

2. no paperwork provided from a CPR request.

3. no default notice, no assignment notice, no LBA, No Agreement.

4. Mbna paid back the charges on that account, so amount being claimed is wrong.

5. They have put two accounts together on one claim. (original Different lenders and different agreements) both opened 2002

The above is the main bits I can see but will double check.

Thanks Spam.

[Spamalot]

Ok I'll have a go at getting it done by thurs afternoon if thats ok I hope that gives your dad enough time to familiarise himself with it. Just add anything you can find in the meantime..

 

Spam.

[gazhodge1981]

Anything before the 16th would be amazing Spam, thank you so much for your help

[gazhodge1981]

Ok got a load of stuff from Argos today, (one of the original Creditors)

They have sent the following:-

Copy of original Credit Agreement. (not Original)

Statements,

T&C dated 8/5/06, Not 2002 when agreement was taken out.

Contact info and some personal info, Thats it.

I used the current SAR Template and they kept the £10

They have failed to provide any default notices, Original Agreement, T&C, anything about Cabot apart from a typed bit on the history saying it was sold to them in 2007

I cant believe how these organisations cant provide paperwork

[Spamalot]

Thats ok, the less the better...

 

If you can scan up the 'agreement'... usual bits blacked out.. so we can see what they're working with and what we can pull apart that would be great..

 

Spam.

[gazhodge1981]

I have noticed looking that they have sent the application.

A have also put on the T&C that they sent If cant see them I can email them

[Spamalot]

Hi Gaz,

 

No Thats fine.. It is just an application form and it doesn't appear to be an enforceable agreement...

 

The T&C's should be on the same page as the signature and as you can see they are actually in a booklet and not attached to the application form. Argos don't seem to have bothered trying to hide the fact cos they've already sold the debt on... Looking good so far..

 

Spam.

[gazhodge1981]

Thats great news Will wait and see what MBNA send.

If the agreement is unenforceable what does that mean in terms of Cabot and things like defaults and charges?

[Spamalot]

It basically means that the agreement can't be enforced in a court of law.. i.e whatever the debt they can't make your dad pay it... the lack of defaults etc are just the icing on the cake...

 

Spam.

[Spamalot]

Hi Gaz,

 

This is a rehash of my set aside defence edited to suit your dads case..

 

I've highlighted the sections that need your attention re correct names, dates etc.

Also I'm not sure if you requested a termination letter and/ or whether there's charges on the alleged account so just edit those out if they're not needed.

 

COUNTY COURT CLAIM NO: xxxxxxx

On Transfer from the

NORTHAMPTON COUNTY COURT

 

 

BETWEEN

 

 

 

Cabot Financial

 

 

CLAIMANT

 

 

 

And

 

 

 

 

 

Gazhodge Dad

 

 

DEFENDANT

 

 

 

 

 

Respectfully, I wish to apply for a set-aside of the Judgment given in this case to the Claimant at the Northampton County Court Bulk Centre on xx xx xx

 

The defendant denies that he is liable as alleged in the Particulars of claim, or at all.

 

In respect of the alleged agreements, a request was made under CPR 18 for a copy of the agreements on xx xx xx. The request was sent Special Delivery and signed for. A satisfactory copy of either agreement was not produced. It is denied that any such agreement was entered into by Gazhodge Dad and Mbna Bank or Gazhodge Dad and Argos the claimant is put to strict proof that such agreements exist.

 

Should it be proved that either of these agreements exist, it is denied that the claimant has the legal right to enforce them and therefore is put to strict proof of their rights of ownership by way of a Legal Assignment.

 

A request for the copy of Assignments for these alleged agreements was made under CPR 18 on xx.xx.xx and was sent special delivery and signed for, but they were not produced by the Claimant.

I would therefore respectfully seek the Courts permission to request sight of the Deeds of Assignment in respect of both of these alleged debts.

 

In addition, the defendant requires proof of service of the Notices of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears these are assigned debts. The reason the defendant requests this information is inter alia to clarify the dates and amounts are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered ineffectual in

law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169.

 

 

 

The defendant denies that any valid default notices was received from the claimant. The Consumer Credit Act 1974 s. 87 (1) states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement (a) to terminate the agreement.

 

A request was made for copies of default notice(s) under CPR 18 on xx.xx.xx. by special delivery which was signed for, but none were produced, therefore the claimant is put to strict proof that a valid default notices were issued by the claimant and of the proof of service.

 

 

The defendant also denies that a notice of Termination of the alleged agreement was received. A request for copies of a notice of Termination was requested under CPR 18 on xx.xx.xx. and sent special delivery and signed for. No Notices of Termination were produced by the Claimant.

 

To Date the claimant has failed to comply with my request under the CPR and I have not received any of the documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

 

 

In respect of the alleged agreements, to which penalty charges have been levied, it is denied that any monies are owed to the Claimant.

 

 

The Claimant also seeks to claim interest under s.69 of the County Courts Act 1984.Statutory interest on a regulated agreement is prohibited in accordance with the county courts (interest on judgment debts) order 1991.

 

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in obtaining a CCJ and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The claimant also claims £xxx.xx in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

 

 

 

 

I believe that the facts stated in this defence are true.

 

I am the Defendant

 

 

 

Signed

 

 

 

Hope it's ok, It's shamelessy stolen from Andyorch;). I'll get a 'reasons for set aside' prompt sheet ready also when I can.

 

Sorry I couldn't attach it as a document but my laptop won't let me open the pop up window.. It should be ok to copy and paste into word though.

 

Spam.

[gazhodge1981]

That is great work Spam

Thank you so much, It reads great.

I will put it into word now and get all the documents I need together. Is it worth at this stage taking things like letters From MBNA and Argos?

[Spamalot]

To be honest I would say not to worry about taking anything else at this stage.

 

Your dads reason for requesting a set aside is no LBA and no claim recieved and his main defence is that Cabot have no documents to prove he is indebted to them and he doesn't owe them any money whatsoever so they should not be taking him to court.

 

It's just as if I were to put a claim in to Northampton CC saying you owe me loads of money and send it to the wrong address so that you don't receive it and get a default judgement against you cause you didn't reply... Thats about the strength of their claim against your dad...

 

Leave it to them to prove it...

 

 

 

Spam.

[gazhodge1981]

hehe at this rate I will owe you loads of money

[gazhodge1981]

Hi Spam,

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The claimant also claims £ in charges. I refute these are payable. These are default charges levied on the

 

Which charges go into this section??? I dont want to put the wrong ones

[Spamalot]

The charges would be if your dad had any overlimit or late payment charges that were unlawful... Therefore... if the matter went to trial.. and the judge enforced the agreement.. he could dispute the amount owing on the claim because it included unlawful charges...

 

If it doesn't apply to your dads case just edit it out..

 

Spam.

[gazhodge1981]

well MBNA paid back around £2000 i think and I can work out what Argos have charged on the statement they provided yesterday. Thanks Spam